2022 QCCA 339, 2022 QCCA 339

Beauchamp c. R. 2022 QCCA 339 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007014-192 (500-01-078101-125 SEQ. 001) DATE: 10 March 2022 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. ÉRIC BEAUCHAMP APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] This is an appeal against a guilty verdict pronounced by a jury on 11 February 2019 for first-degree murder following a trial before the Honourable Guy Cournoyer, Superior Court, District of Montreal. [ 2 ] For the reasons of Healy, J.A., with Vauclair and Mainville JJ.A. agree, the Court: [ 3 ] DISMISSES the appeal. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. Me Martin Latour Me Maude Pagé-Arpin LATOUR DORVAL AVOCATS For the Appellant Me Marie-Ève Mayer DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS

For the Respondent Date of hearing: 7 June 2021 REASONS OF HEALY, J.A. [ 4 ] This is an appeal against a verdict of guilty returned by a jury on a count of first-degree murder in a trial before the Honourable Guy Cournoyer of the Superior Court, District of Montreal. [1] Introduction [ 5 ] The appellant submits that the trial judge erred in law by failing to instruct the jury adequately on two points. He claims first that the judge should have given a “ Vetrovec warning” [2] with respect to the testimony of Marcel Lefebvre.

Second, he submits that the trial judge erred in law, and compromised the fairness of the trial, by giving the jury a robust instruction to the effect that the appellant had lied under oath while refusing to give a similar instruction with regard to inconsistent sworn statements by René Bélanger to police and at the preliminary inquiry. [ 6 ] The relevant principles are not disputed with respect to either ground in this appeal but with their application. In both the appellant’s concern lies with the credibility of Marcel Lefebvre and René Bélanger.

As for the first, whether to give the jury a Vetrovec instruction (“a clear and sharp warning”) is a question within the discretion of the trial judge concerning the credibility of a witness whose testimony is apparently suspect to a degree that calls for particular scrutiny and a caution against acceptance of that testimony in the absence of independent confirmation by other elements in the evidence. [3] This question is resolved by consideration of the relative importance of the testimony at issue to the case as a whole and the presence of any factors that call for the exercise of prudence by the trier of fact in the evaluation of that testimony. [4] [ 7 ] The Supreme Court has approved the following comments on the application of the principles in Vetrovec as stated in an

article by Marc Rosenberg: The judge should first in an objective way determine whether there is a reason to suspect the credibility of the witness according to the traditional means by which such determinations are made. This would include a review of the evidence to determine whether there are factors which have properly led the courts to be wary of accepting a witness’s evidence.

Factors might include involvement in criminal activities, a motive to lie by reason of connection to the crime or to the authorities, unexplained delay in coming forward with the story, providing different accounts on other occasions, lies told under oath, and similar considerations. It is not then whether the trial judge personally finds the witness trustworthy but whether there are factors which experience teaches that the witness’s story be approached with caution. Second, the trial judge must assess the importance of the witness to the Crown’s case.

If the witness plays a relatively minor role in the proof of guilt it is probably unnecessary to burden the jury with a special caution and then review the confirmatory evidence. However, the more important the witness the greater the duty on the judge to give the caution. At some point, as where the witness plays a central role in the proof of guilt, the warning is mandatory.

This, in my view, flows from the duty imposed on the trial judge in criminal cases to review the evidence and relate the evidence to the issues. [5] [ 8 ] The refusal to give a Vetrovec instruction can amount to reversible error if the need for a robust caution is not given sufficient attention. [6] A clear and sharp instruction is not required if, despite elements that might impugn the weight of his or her testimony, the witness appears sufficiently credible. [7] The refusal to give a Vetrovec warning does not restrict the discretion of the judge to include a direction that is less pointed or robust concerning the need for caution in the evaluation of the credit due to a witness’s testimony. [8] The decision to refuse, or to give, a Vetrovec instruction will not amount to reversible error unless it is unfounded in law or it creates undue prejudice. [9] [ 9 ] As for the testimony of René Bélanger, the appellant does not claim that a Vetrovec warning was necessary.

He claims that the judge, in his discretion, should have instructed the jury expressly to consider inconsistencies when assessing the credibility of Mr. Bélanger’s prior sworn statements made by him to police and at the preliminary inquiry. He claims specifically that, if the judge was justified in giving a direction that the jury should consider that the appellant had lied under oath, a similar instruction was needed with respect to prior inconsistent statements by René Bélanger. [ 10 ] The judge gave no explicit instruction with respect to Mr.

Bélanger’s prior statement but he did give a general instruction to this effect with regard to prior inconsistent statements of any witness. The appellant claims that this omission was reversible error and specifically submits that the instruction required express application to Mr. Bélanger’s testimony.

He says that such clarity of focus is recommended in model directions proposed by the National Judicial Institute [10] : 11.10 Prior Inconsistent Statements of Non-Accused Witness (Credibility) (Last revised June 2012) [1] If you find that a witness said one thing in the witness box and something different about the same subject on an earlier occasion, this may be a factor in assessing the witness’s credibility. [2] It is for you to determine what effect any differences will have on your overall assessment of the witness’s credibility. They may have a huge effect, or no effect, or somewhere in between.

Not every difference is important. Consider the extent and nature of any difference. Was it on a central point or something peripheral? Consider any explanation the witness gave. Was the explanation satisfactory?

[3] Generally, the earlier statement may be used only in assessing the witness’s credibility. However, there is an exception when thewitness, while testifying at trial, accepts all or part of the earlier statement as true. In that event, the earlier statement may also beconsidered as evidence of what happened, but only to the extent the witness accepted it as true.

It is for you to decide what weight if anyto give to the part of the earlier statement that the witness accepts as true. (When the prior statement is under oath (e.g., preliminary inquiry or under oath at police station).) [4] If you conclude that a witness has given significantly different versions of the same story while under oath, you should evaluate that witness’s testimony very carefully, as this may suggest that the witness does not take the oath seriously.[1] (Review relevant evidence and relate to the rule.) [1] There may be circumstances when this instruction should be strengthened.

For example, when a principal Crown witness’s testimonyon a vital issue conflicts with his or her earlier sworn statement, it may be appropriate to tell the jury that it is dangerous to rely on thewitness’s evidence. See: Binet v. The Queen, (SCC), [1954] S.C.R. 52 at 54. Also, R. v. Maxwell, (SCC), [1979] 2 S.C.R. 1072. [11] The appellant does not submit that the general instruction given by the trial judge concerning the assessment of a witness’s priorinconsistent was wrong but that it was insufficient because it did not mention the nature and content of Mr. Bélanger’s statements inparticular. 1.

The factual context [12] The sole issue at trial was the identity of the person who killed Réal Perron on 30 August 1995 in the bar Le Lupin (“the Lupin”). 1.1 The prosecution case [13] Perron controlled a drug-trafficking network with his lieutenant, Serge Robillard. René Bélanger and the appellant sold drugs andreported directly to Robillard. [14] Bélanger testified at the preliminary inquiry that in the summer 1995 Robillard recruited him to kill Perron for $5000, a car and apromotion because Robillard wanted to eliminate Perron in order to take his place at the head of the trafficking network.

Variousmethods were considered, including explosives, a crossbow and a revolver but in the weeks preceding the killing Robillard informedBélanger that he was no longer needed because he had found someone else to murder Perron. Bélanger later understood that thereplacement was the appellant, who was then selling drugs in the Lupin, because the appellant smiled when Robillard confirmed thereplacement in Bélanger’s presence. On 15 August 1995 Bélanger went to Station 33 and signed a statement that informed police of theimpending murder of Perron.

He identified Robillard and the appellant as the persons responsible for the plan. [15] Marcel Lefebvre testified that two or three days before the killing he saw a man who physically resembled the appellant at thehome of Émile Béland, a former drug dealer who had worked for Perron. At the time Béland was a money-lender who did business in theLupin. Lefebvre claimed to have seen Béland hand $5000 to the man in question while confirming that he would receive another amountonce the job was done. The two men discussed the killing of Perron.

The man identified as the appellant said that “it” would be done intwo or three days and that he would “l’enterrer sur le ventre.” [16] On 30 August 1995 Perron was shot in the Lupin with four bullets in the back of the neck. Four other persons were in the bar atthe time: a customer named Paul Rose, an employee named Bruno Guay, Robillard and the appellant. [17] Guay described the positions of the persons in the bar in the minutes preceding the killing. Robillard was at the bar reading anewspaper and the appellant was close to the video machines. Perron was standing near the bar and speaking on a telephone.

Guay saidthat he was seated at a table watching a programme on television when three shots were fired.[11] When he raised his eyes he saw theappellant standing directly behind the victim and very close to him but saw nothing in his hands and observed no gestures by him.Immediately after the shots the victim fell to the floor. Robillard and the appellant escaped through a side door. Guay said that he couldnot identify a voice but heard from a distance the words “t’as rien vu, t’as rien entendu.” When police arrived Guay claimed that he sawnothing because he was in the toilets when the murder was committed.

Almost a year after the killing, in July 1996, Guay changed hisaccount after he was confronted by a video statement by Robillard that placed him at the scene of the murder. In September 1996 Guayidentified the appellant in a photo line-up as the killer. [18] The reports of the pathologist and the ballistics expert confirmed that the barrel of the murder weapon would have been close tothe victim’s head at a distance of less than four feet.

A cigarette end was found at the scene and it was later shown to bear the appellant’sDNA. [19] The evidence disclosed that the appellant confessed his responsibility for Perron’s murder to three former girlfriends. There werevariations in the details in those statements and the circumstances in which they were made. 1.2 The appellant’s testimony [20] The appellant testified that in 1995 he went to the Lupin to buy drugs. At that time he had no direct contact with Perron but knewthat he was in charge.

On 1 August 1995 he began to sell drugs in another bar that was nearby, the “Key West,” to replace René Bélangerwho had run away with drugs and money. In the following days the appellant saw Bélanger with Robillard in the Lupin and it was thenthat Robillard told Bélanger that the appellant had replaced him in his usual spot as seller at the Key West. [21] The appellant testified that he knew Émile Béland by the nickname “mon oncle Émile” and that he saw him every day in theLupin. But he denied that he went to collect a sum of money from his home and did not even know where he lived.

The appellantaffirmed that he had never seen Marcel Lefebvre.

[22] The appellant testified that on 30 August 1995 he was with Robillard in the Lupin and that Paul Rose, Bruno Guay and RéalPerron were also there. He said that in his recollection he was playing pool when he heard three shots and ran away immediately withoutlooking to see where they were fired. [23] The appellant admitted that he made three statements to three former girlfriends regarding his involvement in Perron’s murder, inone case to have some peace and in the others to brag, but claimed that these statements were entirely false because he was neverinvolved in the murder. 2.

Grounds of appeal [24] Appellate review of jury instructions requires a functional assessment whether the instructions, taken as a whole, prepared thejury for its deliberations with sufficient direction on the applicable law and material evidence.[12] To reinforce this view the SupremeCourt has said that appellate review does not require or justify microscopic examination of a judge’s instructions to a jury.

This wasrestated, for example, in Araya: [39] When considering an alleged error in a trial judge’s jury instructions, “[a]n appellate court must examine the alleged error in thecontext of the entire charge and of the trial as a whole”: R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32, per LeBel J. Further,trial judges are to be afforded some flexibility in crafting the language of jury instructions: see Hay, at para. 48, citing R. v. Avetysan,2000 SCC 56, [2000] 2 S.C.R. 745, at para. 9.

While trial judges must seek to ensure that their instructions adequately prepare the juryfor deliberation, the standard for jury instructions is not perfection. Appellate review of jury instructions is meant to “ensure that juriesare properly — not perfectly — instructed”: R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314, at para. 62, per Lamer C.J.This Court has emphasized that the charge generally should not be “endlessly dissected and subjected to minute scrutiny and criticism”:R. v. Cooper, (SCC), [1993] 1 S.C.R. 146, at p. 163. As Bastarache J. has summarized it in R. v.

Daley, 2007 SCC 53,[2007] 3 S.C.R. 523, at para. 30: The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury thatmatters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matterwithin the discretion of the trial judge and will depend on the particular circumstances of the case.

Appellate courts should not examine minute details of a jury instruction in isolation. “It is the overall effect of the charge that matters”:Daley, at para. 31.[13] [25] This view has been repeated in appellate courts across Canada, including this Court.[14] [26] Trial judges enjoy a broad discretion in the formulation of their instructions to juries.

Their instructions routinely includecautionary statements to a jury concerning the about the manner in which a jury might assess the evidence presented they have heard.The judge will remind the jury that it is their function as judges of the facts to evaluate the strengths and weaknesses of the evidence indetermining what or how much of it they will accept or reject in reaching a verdict according to the law and the standard of proof. [27] When appropriate, the judge will identify aspects of the evidence that require particular attention by the jury and the reasons forwhich such caution requires prudence.

The credibility and reliability of a witness’s are frequently mentioned by judges in this respect andthis is the core of the two grounds advanced by the appellant in the present case. [28] With respect to the first, the appellant claims that Marcel Lefebvre’s testimony requires the special caution of a Vetrovecwarning.

Those principles require not only a direction to identify reasons why the jury should evaluate a witness’s testimony withheightened vigilance but with a specific consideration whether the substance of that testimony is confirmed by other evidence presentedin the case. [29] The appellant’s second ground rests on a similar concern but is not the same.

He claims that, if the judge should have instructedthe jury explicitly to assess the credibility of the appellant’s testimony with focused attention on the possibility that inconsistenciesdisclose a disregard for the obligation of his oath to tell to truth, the judge should have directed the jury in the same manner with regardto the testimony of René Bélanger at the preliminary inquiry.

In short, the appellant claims that the judge’s robust instruction, whencompared to that given in respect of Bélanger’s testimony, caused undue prejudice to the defence. 2.1 The credibility of Marcel Lefebvre [30] The significance of Marcel Lefebvre’s testimony was to identify the appellant as the recipient of $5000.00 for the murder of RéalPerron in the days preceding the killing. [31] Lefebvre’s criminal record includes convictions for trafficking, theft and production of cannabis. He sold drugs for the benefit ofRéal Perron in the early 1990’s.

He stopped after a sentence for trafficking in 1994 and borrowed $500.00 from Émile Béland to invest ina project.

The project failed and he was unable to repay the loan. [32] In January 1996 Lefebvre, while in prison on an unrelated matter, disclosed to police the details of the encounter between theappellant and Émile Béland and unsuccessfully sought police protection because he feared reprisals from Béland relating to his unpaiddebt. [33] Lefebvre was arrested for theft in February 1996 and admitted in his testimony at trial in the present case that he then sought abenefit from police in return for cooperation concerning the murder of Réal Perron.

He first answered by saying that he had norecollection of this but later acknowledged that it was possible. He added that he thought he had received a sentence of two years but wasactually released after three days. His testimony does not reveal whether his release was attributable to intervention by police. [34] At trial the appellant asked the judge to give a Vetrovec warning with regard to Lefebvre’s testimony. The judge refused on thebasis that the evidence disclosed at most Lefebvre’s attempt to seek a benefit from police but not that he received any benefit. Whether he

received a benefit was thus pure speculation. The judge agreed nonetheless to direct the jury to consider the context of Lefebvre’s statements to police, which he did in these terms: Dans l’évaluation du témoignage de monsieur Lefebvre et de son identification, vous devez notamment tenir compte des éléments suivants. Est-ce que monsieur Lefebvre a tenté d’obtenir des avantages des policiers en échange de sa collaboration?

Et si oui, est-ce que cela affecte sa crédibilité comme témoin? [ 35 ] The appellant’s argument is that a Vetrovec warning was required in these circumstances because the caution given by the judge was insufficient in view of the importance of Lefebvre’s testimony and the strength of the reasons to doubt his credibility, including notably any reasons relating to the facts of the instant case. [ 36 ] The objective in Vetrovec was to liberate the law from rules of undue formalism relating to the principle of corroboration and to replace them with due recognition of the judge’s discretion to fashion appropriate instructions that reflect the underlying imperatives of principle. [15] In Khela the Supreme Court summarised those imperatives: (1) drawing the attention of the jury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused. [16] [ 37 ] The Court explained clearly that these imperatives were not in themselves formal rules that required strict adherence but guidelines to assist judges to formulate instructions in their discretion that satisfy two objectives: [47] It is not “overly formalistic” to ensure that triers of fact attain the appropriate level of comfort before convicting an accused on the basis of what has for centuries been considered unreliable evidence.

A truly functional approach must take into account the dual purpose of the Vetrovec warning: first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses. [17] [ 38 ] In Durand this court enumerated some of the factors that might support reasons to impugn the credibility of a witness and to justify a Vetrovec warning: [123] La question de la nécessité d’une directive de type Vetrovec repose sur une approche fonctionnelle, fondée sur le bon sens et l’expérience judiciaire.

Au

titre des facteurs propres à mettre objectivement en doute la crédibilité d’un témoin, les tribunaux retiennent, entre autres, la complicité du témoin dans le fait ou après le fait, les témoins de mauvaise réputation, ceux qui ont fait des déclarations mensongères dans le passé, les témoins ayant un lourd casier judiciaire ou ayant un mode de vie criminel, les consommateurs ou trafiquants de stupéfiants, le fait que le témoin croit avoir un intérêt personnel à témoigner contre l’accusé, le retard inexpliqué pour présenter sa version des faits aux autorités, le caractère spécifique de la présumée confession (du type : « j’ai tué X ») et la mesure dans laquelle la déclaration renferme des détails que seul l’auteur de l’infraction connaît, ainsi que l’accès à des sources extérieures de renseignements. [18] [ 39 ] Nothing in the present case could support a conclusion that a Vetrovec warning was necessary.

There is no objective basis to suspect that he received a benefit from police for his disclosure, that he lied at any point concerning the disclosure or that he had any interest to incriminate the appellant. Moreover, as acknowledged by the appellant, Lefebvre’s testimony was not vital to the prosecution case. It was not even necessary for the coherence of the prosecution case, which could support the jury’s verdict without his testimony.

Lefebvre’s testimony added some substance to the narrative concerning the sequence of events and the identity of the appellant as a participant but it was not essential to prove the prosecution case for murder.

His testimony was a comparatively minor element among others in evidence at trial, which included: - René Bélanger’s testimony, which identifies the appellant as the person who took over the contract to kill Réal Perron and which is reinforced by his statement to police on 15 August 1995 (two weeks before the murder); - the appellant’s DNA on a cigarette end, which tends to confirm the appellant’s presence in the Lupin on the night of the murder; - the appellant’s testimony, which confirms his presence in the Lupin at the time of the murder; - Bruno Guay’s testimony, which places the appellant directly behind the victim in the seconds following the shots; - the experts who confirm three entry wounds in the victim’s neck and the discharge of shots at close range; - the appellant’s confessions to three former girlfriends. [ 40 ] In these circumstances there is no reversible error in the judge’s decision to refuse a Vetrovec warning in relation to the testimony of Marcel Lefebvre. 2.2 The credibility of René Bélanger [ 41 ] The trial judge robustly instructed the jury to assess the appellant’s testimony because he admitted under oath that he had previously lied under oath. [ 42 ] In his second ground of appeal the appellant submits that René Bélanger had lied under oath in previous statements that were admitted before the jury.

Accordingly, he claims that the judge should have given a similarly robust instruction that the inconsistencies

and contradictions between the previous sworn statements and the testimony of René Bélanger at the preliminary inquiry required acute scrutiny of his credibility and reliability. The judge gave a general instruction that the jury should examine apparent inconsistencies in the testimony of witnesses.

He did not give a more pointed instruction that the testimony of René Bélanger required particular scrutiny on the basis that inconsistencies in his sworn statements disclosed that he had apparently lied under oath. [ 43 ] At issue in the second ground of appeal is not whether the judge failed to instruct the jury to assess the credibility of witnesses, including René Bélanger, but whether the instruction he gave was sufficiently robust with respect to Bélanger in particular.

There are three related reasons for which the appellant could take the position that the instruction given by the judge was not sufficiently robust: first, that it did not focus explicitly on the testimony of René Bélanger; second, that it did not particularise lying under oath as the basis for heightened scrutiny of his testimony; third, that it did not enumerate the contradictions that warrant the jury’s consideration. [ 44 ] At issue are two statements made by Bélanger to police officers. The first was made at Station 33 on 15 August 1995 in which Bélanger informed police that Perron would be murdered.

Another was made on 4 February 1998 in the offices of the homicide division in the presence of Detective-Sergeant Jean-Claude Bergeron. It consisted of a written statement of seven pages and written confirmation of Bélanger’s positive identification of the appellant in a photographic line-up. Bélanger later testified at the preliminary inquiry on 17 April 2014. He died before the trial. [ 45 ] Following a voir dire at trial, the judge admitted Bélanger’s testimony at the preliminary inquiry.

He also admitted information concerning what Bélanger told police officers on 15 August 2015 but it was used solely to assist in the evaluation of Bélanger’s testimony at the preliminary inquiry. Further, the judge admitted testimony by Det.-Sgt. Bergeron concerning Bélanger’s participation in the line-up on 4 February 1998. Bergeron claimed that Bélanger’s statement was taken under oath. In cross-examination of Bergeron the appellant sought to challenge Bélanger’s credibility using the written statement of seven pages to demonstrate contradictions between it and his testimony at the preliminary inquiry.

The statement itself was not admitted in evidence. [ 46 ] In the pre-instruction conference the appellant asked the judge to give a specific direction that in assessing Bélanger’s credibility the jury should take into account contradictions between his testimony at the preliminary inquiry and his statement to Bergeron on 4 February 1998 that demonstrated he had lied under oath.

The judge refused this request and instead instructed the jury generally to consider any contradictions in Bélanger’s statements in their evaluation of the prior inconsistent statements of all witnesses. [ 47 ] The appellant identifies three apparent contradictions in Bélanger’s statements: that he did not see again the appellant and Robillard after he was told of his replacement as the killer; when and how he learned that the appellant had taken over the contract; the payment or reward first offered to him by Robillard.

In the main, however, the core of his account remained as he had originally disclosed to police on 15 August 1995, that he was initially engaged to kill Perron and that this engagement was subsequently withdrawn when it was assigned to the appellant. [ 48 ] Bélanger was never cross-examined with respect to his previous statements and he never admitted that he had lied under oath. By contrast, the appellant was cross-examined and he admitted under oath that he had previously lied under oath.

For this reason, and with the agreement of the parties, the judge instructed the jury as follows: Déclarations fausses de monsieur Beauchamp lors de l’enquête sur mise en liberté. Monsieur Beauchamp a admis devant vous qu’il avait menti en

partie lors de son témoignage, lors d’une enquête sur sa mise en liberté. Il a reconnu qu’il avait dit lors de ce témoignage qu’il était parti pour aller visiter les Rocheuses alors qu’il avait quitté le Québec pour s’enfuir des policiers. Le fait que monsieur Beauchamp ait menti sous serment lors de ce témoignage antérieur pourrait indiquer qu’il ne prend pas un témoignage rendu sous serment au sérieux.

Il vous appartient d’évaluer l’importance de ce facteur dans votre évaluation de la crédibilité de monsieur Beauchamp. [ 49 ] Unlike the appellant, Bélanger was not a witness in a prosecution against himself and the evidence did not disclose that he had previously lied under oath. The apparent contradictions in his prior statements, as identified by the appellant, were not of central importance because they did not contradict the material elements of his prior statements.

The judge concluded in his judgment following the voir dire that the jury was able to grasp the significance of any apparent contradictions in a general instruction and that in the circumstances a special instruction was not required: […] je parle de Bélanger par rapport aux deux éléments qui étaient dans la déclaration écrite de monsieur Bergeron. Le seul élément que vous retrouvez pas là, c’est est-ce que c’est sous serment ou c’est juste une contradiction.

Je vais vous dire honnêtement, je trouve que…je suis pas sûre que de la preuve, on est capable d’arriver à la conclusion… Peut-être que comme juge seul, je serais capable d’arriver moi, à… Peut-être que comme juge seul moi, moi je serais capable à arriver à la conclusion que dans les circonstances, la portée du témoignage de monsieur Bergeron était telle qu’il avait adopté l’idée que ça avait été fait sous serment après devant lui. Dans le contexte du dossier ici, je trouve pas que ses réponses me permettent de donner une directive si claire au jury.

De toute façon, cet élément-là, qu’on retrouve à 168, 169, il est répercuté dans votre position à la fin et il me semble que ça fait bien le travail que vous voulez, ce sur quoi vous voulez attirer l’attention du jury.

Puis que la distinction supplémentaire de sous serment ou pas sous serment, à cette étape-ci, m’apparaît si technique qu’il n’y a pas de gain et s’il y a un préjudice de pas le faire, il est au mieux minimal. […] À mon avis, une directive à cet égard n’est pas requise parce que j’arrive à la conclusion que les réponses données par monsieur Bergeron lors de son témoignage, ne rendent pas cette question comme étant une question vraisemblable qui exige que je donne une directive précise sur le caractère des contradictions sous serment. [ 50 ] Having decided that a general direction concerning Bélanger’s credibility would be sufficient, the judge instructed the jury in these terms: Les déclarations antérieures incompatibles d’un témoin.

Si vous arrivez à la conclusion qu’un témoin a déclaré quelque chose à la barre

des témoins alors qu’il a dit tout autre chose dans le passé sur les mêmes événements, cela pourrait être un facteur dans l’évaluation de la crédibilité du témoin. Il vous appartient de décider si ces différences auront une incidence sur votre évaluation de la crédibilité du témoin. Les différences pourraient avoir une grande incidence, avoir une certaine incidence ou n’avoir aucune incidence. Les différences ne sont pas toutes importantes. Examinez leur nature et leur étendue. Portent-elles sur un point central ou sur un élément accessoire?

Tenez compte de toute explication fournie par le témoin au sujet de cette différence. Cette explication est-elle satisfaisante? En règle générale, la déclaration antérieure ne peut servir qu’à évaluer la crédibilité du témoin. Cependant, il existe une exception à cette règle lorsque le témoin accepte la véracité ou la totalité d’une

partie de la déclaration antérieure au cours de son témoignage. Dans ce cas, la déclaration antérieure peut aussi être considérée comme une preuve de ce qui s’est passé, mais seulement dans la mesure où le témoin en accepte la véracité. Il vous appartient de décider de la valeur à accorder à la

partie de la déclaration dont le témoin accepte la vérité. À cet égard, pendant un certain temps monsieur Guay a déclaré qu’il n’avait rien vu et qu’il n’avait rien entendu. Par ailleurs, le sergent- détective Bergeron a expliqué que monsieur Bélanger lui avait affirmé que monsieur Robillard ne lui avait pas offert d’argent pour tuer Réal Perron, alors qu’il témoigne en sens contraire lors de l’enquête préliminaire.

Aussi, monsieur Bergeron témoigne que monsieur Bélanger lui a dit qu’il n’avait jamais revu Robillard après la soirée où il a été informé que monsieur Beauchamp le remplaçait, alors que monsieur Bélanger témoigne lors de l’enquête préliminaire et fait état de plusieurs autres rencontres entre lui, Robillard et Beauchamp. Il vous appartient d’évaluer l’importance de ces contradictions et l’impact qu’elles ont sur l’évaluation que vous ferez de ces témoignages.

Par ailleurs, une précision au sujet des cas où la déclaration antérieure du témoin a été faite sous serment, à savoir dans le cadre d’une enquête préliminaire ou sous serment au poste de police. Je pense par exemple au témoignage de madame Laliberté au sujet du fait qu’elle avait déclaré sous serment qu’elle n’avait aucune idée de la manière dont le meurtre avait été commis.

Si vous arrivez à la conclusion qu’une personne a donné sous serment une version des événements qui diffère considérablement de celle consignée auparavant, vous devriez évaluer son témoignage avec prudence, car cela pourrait indiquer que le témoin ne prend pas la déclaration sous serment au sérieux. [ 51 ] And later: Le témoignage de monsieur Bélanger à l’enquête préliminaire. Monsieur Bélanger a rendu un témoignage antérieur lors de l’enquête préliminaire, sous serment. Comme vous le savez, il est décédé d’une overdose de Fentanyl, sans lien avec le présent procès. Il n’était donc pas disponible pour témoigner.

Vous avez entendu son témoignage antérieur comme preuve dans ce procès. Afin de décider de la valeur à accorder à ce témoignage, vous devez tenir compte du fait que vous n’avez pas eu l’occasion d’observer monsieur Bélanger pendant son témoignage et que la défense n’a pas eu l’occasion de contre-interroger monsieur Bélanger dans ce procès. En d’autres mots, vous n’avez pas eu l’occasion d’évaluer le témoignage de monsieur Bélanger comme vous l’avez fait avec les autres témoins qui ont témoigné devant vous.

Vous devez tenir compte de ces facteurs pour décider de la valeur à accorder au témoignage de monsieur Bélanger. J’ai discuté des deux autres contradictions soulevées par la défense antérieurement et je vous réfère au paragraphe pertinent dans mon texte que vous aurez. [ 52 ] The judge made further reference to this theme in his

summary of the case for the defence and extensive reference to it was made in the pleadings of both parties. [ 53 ] In short, the judge in this case first refused a request by the appellant to exclude Bélanger’s prior sworn statements from the evidence altogether. The appellant then took the position that the apparent inconsistencies in those statements could not adequately be addressed in a general instruction concerning witnesses’ prior inconsistent statements.

Accordingly, the appellant requested a special instruction on this issue that was comparable to the instruction given in relation to the appellant’s testimony following his admission under oath that he had previously lied under oath. The judge refused. [ 54 ] René Bélanger’s testimony was useful to amplify the evidence of the context in this case but he was not a “principal” witness who testified on a “vital” issue.

There is nothing before the Court to suggest that the judge failed to exercise his discretion to provide appropriate and adequate instruction concerning Bélanger’s testimony in the circumstances of this case. There is nothing to support his submission that those circumstances required a direction comparable to the instruction relating to the appellant’s prior inconsistent statements. Conclusion [ 55 ] I propose to dismiss the appeal. PATRICK HEALY, J.A.

[10] National Judicial Institute, Final Instruction 11.10, Prior Inconsistent Statements of Non-Accused Witness (Credibility) , last revised June 2012.